PEOPLE v. NICKERSON

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PEOPLE v. NICKERSON

January 20, 1998
No. 188925

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v

Huron Circuit Court

JAMES ARTHUR NICKERSON, LC No. 94-003702-AR

Defendant-Appellee.

Before: Young, P.J., and Markman and Smolenski, JJ.

SMOLENSKI, J.

The Huron County Prosecutor appeals by leave granted a circuit
court order denying the prosecutor’s motion to reverse a district
court judgment that dismissed a misdemeanor charge against
defendant of operating a vehicle while under the influence of
intoxicating liquor (OUIL), MCL 257.625(1); MSA 9.2325(1). We
reverse and remand.

Defendant was arrested for and charged with misdemeanor OUIL
arising out of an August, 1994, motor vehicle accident that
occurred in the pit area of the Owendale Speedway. At that time,
the OUIL statute provided, in relevant part, that a person, while
under the influence of intoxicating liquor,

shall not operate a vehicle upon a highway or other place
open to the general public or generally accessible to motor
vehicles, including an area designated for the parking of
vehicles . . . . [MCL 257.625(1); MSA 9.2325(1).] [1]

Defendant subsequently moved the district court to dismiss the
charge on the ground that the OUIL statute did not apply in this
case. In support of his motion, defendant relied on People v
Hawkins, 181 Mich App 393; 448 NW2d 858 (1989), in which this
Court considered the issue whether driving in a shopping center
parking lot while under the influence of liquor came within the
purview of the OUIL statute. At the time the OUIL offense at
issue in Hawkins occurred, the OUIL statute did not
contain the "generally accessible to motor vehicles"
language currently found in the statute, but rather provided only
that a person, while under the influence of intoxicating liquor,

"shall not operate a vehicle upon a highway or other
place open to the general public, including an area
designated for the parking of vehicles . . . ." [Id.
at 396 (quoting MCL 257.625[1]; MSA 9.2325[1][2]).]

In Hawkins, this Court noted that places open to the
general public have been deemed to be places where the public is
invited to enter and conduct business or places that are open to
the public without restriction. Id. at 397-399. The Hawkins
Court determined that the parking lot was a "’place open to
the general public, including an area designated for the parking
of vehicles’" because the parking lot was "accessible
to the general public without restriction." Id. at
399. In his motion below in this case, defendant argued that the
pit area was not a "place open to the general public,"
but rather was a restricted area not within the purview of the
OUIL statute because the speedway charged a $14 admission fee to
get into the pit area.

In response, the prosecutor contended that the admission fee
was not the dispositive factor and that the pit area was an area
"open to the general public." The prosecutor also noted
that Hawkins was decided before the OUIL statute was
amended to include the "generally accessible to motor
vehicles" language. The prosecutor thus contended that the
pit area was also a place "generally accessible to motor
vehicles." and, therefore, within the purview of the OUIL
statute.

The district court subsequently conducted an evidentiary
hearing on defendant’s motion. The speedway’s owner testified
that race spectators can park for free in the general parking
area at the speedway, pay a $6 admission fee, and sit in the
general admission stands to watch the races. The owner testified
that, alternatively, spectators can pay $14 and enter the pit
area. The owner testified that the pit area is essentially a
large field next to the race track and that, analogous to a
drive-in theater, spectators can drive their vehicles into the
pit area through a gate monitored by speedway employees, park,
and watch the races from their vehicles. The owner testified that
in order to enter the pit area the general rules are that
spectators must be at least fourteen years old, unless
accompanied by an adult, and sign a waiver for insurance
purposes. The owner testified that the speedway is lenient about
enforcing these rules.

Following the presentation of the evidence, the parties
reiterated their previous arguments. The district court granted
defendant’s motion to dismiss. Without further elaboration, the
district court simply noted that with respect to the OUIL statute
there was no doubt about the legislature’s intent concerning
those portions of the statute relating to "highways" or
"an area generally accessible to motor vehicles including an
area designated for the parking of vehicle." The court then
stated that it was concerned with the meaning of the phrase
"other place open to the general public." The court
ultimately found that the pit area was not a place "open to
the general public," and therefore not within the purview of
the OUIL statute, because of the age and wavier requirements for
admission into the pit area.

The prosecutor appealed to the circuit court and moved to
reverse the district court’s order of dismissal. The prosecutor
contended that under Hawkins the pit area was a
"place open to the general public" because the public
was invited to enter and transact business in the pit area. The
prosecutor also contended that the pit area was an area
"generally accessible to motor vehicles" and that the
district court had erred in ignoring the disjunctive statutory
language. Defendant responded that under Hawkins the pit
area was not an area "open to the general public."
Defendant also contended that for the same reasons that the pit
area was not "open to the general public," the pit area
was likewise not "generally accessible to motor
vehicles."

The circuit court denied the prosecutor’s motion, stating as
follows:

Well I think that the fact that – you know, if I was
deciding this from scratch as the district court was
confronted with the issue, then I might conclude differently
than the district judge did. However, the standard of review
requires that – that I grant some deference to the finding of
the district court and – and the application of the facts as
stated in the record there to the statute in question and
base it on that.

And I think although perhaps when reading the opinion of the
district judge he did not clearly enunciate that he was trying to
determine whether or not this area was generally accessible to
motor vehicles and instead often referred to open to the general
public, I think that he clearly understood what the terms of the
statute were and understood what was – he was called upon to
decide.

And I think it’s in his judgment and that’s how he ruled, this
area was not generally accessible to the public and for that
reason concluded that the – that the statute did not apply. And I
don’t find that based on this record to be clearly erroneous and
so for that reason I’m going to affirm the decision of the
district court.

On appeal to this Court, the prosecutor again argues that the
pit area is a place that is "generally accessible to motor
vehicles." We agree.

This case concerns a question of statutory interpretation. We
review de novo this question of law. People v Denio, 454
Mich 691, 698; 564 NW2d 13 (1997). The purpose of statutory
interpretation is to give effect to the intent of the
Legislature. Id. at 699. If a statute is clear, we enforce
it as plainly written. Id. In interpreting statutes, words
are to be given their common, generally accepted meaning. Id.
The court should presume that every word has some meaning and
should avoid any construction that would render a statute, or any
part of it, surplusage or nugatory. Altman v Meridian Twp,
439 Mich 623, 635; 487 NW2d 155 (1992). As far as possible,
effect should be given to every phrase, clause and word. Jenkins
v Great Lakes Steel Corp, 200 Mich App 202; 503 NW2d 668
(1993). When its sense is not rendered dubious, the word
"or" should be given its usual meaning. People v
Humphreys, 221 Mich App 443; 561 NW2d 868 (1997)

Here, the statutory language is clear. Specifically, the
disjunctive phrases "open to the general public" and
"generally accessible to motor vehicles" specify two
distinct alternative places other than highways where driving a
vehicle while under the influence of liquor is prohibited. Thus,
even if a place is not "open to the general public,"
the OUIL statute is violated if a person, while under the
influence of liquor, is driving in a place "generally
accessible to motor vehicles." Clearly the Legislature
intended to broaden the coverage of the OUIL statute when it
amended this statute to additionally prohibit drunk driving in
places "generally accessible to motor vehicles." The
circuit court erred in construing the OUIL statute as prohibiting
driving while under the influence of liquor in places
"generally accessible to the public." The district
court erred in failing to separately determine whether driving in
the speedway’s pit area while under the influence of liquor fell
within the purview of the OUIL statute’s "generally
accessible to motor vehicles" language.

In this case, the evidence adduced at the evidentiary hearing
revealed that the pit area is a place where vehicles are
routinely permitted to enter for the purpose of driving and
parking. Clearly, the pit area is a place "generally
accessible to motor vehicles," and the OUIL statute,
therefore, applies in this case.[3]Accord United States v Graef,
31 F3d 362, 364 (CA 6, 1994) (restricted road inside security
fence of federal air national guard base was an area
"generally accessible to motor vehicles" for purposes
of the OUIL statute). This construction of the OUIL statute is in
accord with its purpose, which is to prevent "the collision
of a vehicle being operated by a person under the influence of
intoxicating liquor with other persons or property." People
v Wood, 450 Mich 399, 404; 538 NW2d 351 (1995). Accordingly,
we reverse both the district court’s dismissal of the OUIL charge
against defendant and the circuit court’s denial of the
prosecutor’s motion to reverse the district court. We remand to
the district court for reinstatement of the OUIL charge and
further proceeding consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Michael R. Smolenski

/s/ Robert P. Young, Jr.

/s/ Stephen J. Markman

FOOTNOTES:

[1]Although MCL 257.625; MSA
9.2325 has been amended several times since August, 1994, the
statutory language at issue in this case has remained unchanged.

[2]The "generally accessible
to motor vehicles" language was added to this statute by
1991 PA 98.

[3]
In light of this conclusion, we need not address the prosecutor’s
remaining issue whether the pit area is a place "open to the
general public."